Restraining order rules can be confusing. While on the outside it might seem simple (avoid an individual person), frequently how those rules impact your day-to-day life can get confusing. At Meyer Van Severen, S.C. we regularly defend individuals fighting restraining orders. On the other end, we defend individuals accused of violating restraining orders. We’re certainly familiar with the issues individuals face while subject to these orders.
This article focuses on the questions individuals have regarding restraining orders. We’ll explain the basics of how the orders work, discuss restraining order violations, and finally discuss restraining order breaches.
Finally, what is a restraining order? Frequently we refer to restraining orders as injunctions. In other circumstances we call them protective orders. But in effect, they’re all the same thing – a restraining order prevents an individual from doing something. In the criminal court context, frequently we’re referring to restraining orders that prevent one individual from contacting, harassing, or committing domestic violence against another. Finally, we’ll briefly explain those two types:
- Harassment restraining orders and injunctions: Section 813.125 of the Wisconsin Statutes describes these. “Harassment” means striking, shoving, kicking, or otherwise subjecting another to physical contact. It also includes physical abuse, sexual assault, and stalking. A restraining order seeks to prevent contact and the continuance of these actions.
- Domestic violence restraining orders and injunctions: Section 813.12 of the Wisconsin Statutes describes these. The term “domestic abuse” focuses on the relationship. The parties must have a child in common, have had a dating relationship, are spouses/previously were spouses, or be adults in the same household. Once that relationship is established, there must be physical abuse, sexual assault. stalking, criminal damage to property, or the threat to commit one of these crimes.
- 72-hour no contact orders aren’t formal injunctions, but rather a procedural safeguard.
How does a restraining order work?
To obtain a restraining order, the plaintiff must go into court and file a petition. That petition states the grounds the plaintiff believes support the restraining order. Upon filing the petition, frequently the plaintiff meets with a court commissioner. That commissioner reviews the allegations in the petition and determines whether there’s a factual basis for a temporary restraining order. The temporary restraining order remains in effect until a hearing date, where live testimony is used to determine whether the court will issue a full-blown restraining order. If the court commissioner does not find reasonable grounds to issue the temporary order, the plaintiff can still request a hearing date to present his or her case. Upon the issuance of a temporary restraining order, the court must hold a hearing within 14 days to determine whether the court will issue an injunction against the respondent.
How long does a restraining order last?
“An injunction … is effective … for the period of time that the petitioner requests, but not more than 4 years…” Wis. Stat. sec. 813.12(4)(c)(1). Upon request, a restraining order can last up to 10 years. In that specific circumstance, the petitioner must prove by a preponderance of the evidence that any of the following is true:
- There is a substantial risk the respondent may commit first-degree intentional homicide, or second-degree intentional homicide; or
- There is a substantial risk the respondent may commit first degree sexual assault, second degree sexual assault, third degree sexual assault, first degree sexual assault of a child, or second degree sexual assault of a child.
In plain language, the average restraining order lasts for 4 years. If there’s a basis to believe the respondent will commit sexual assault or homicide against the petitioner, the restraining order can last up to 10 years.
Restraining order violations
There are various crimes associated with violating a restraining order. All are serious, but some carry more significant penalties. Here are some examples:
- Violating a temporary restraining order or injunction. This is the most basic level offense. The law simply focuses on violating a restraining order. If you’re prohibited from having contact with the petitioner, and you call him or her, you’ll face charges for this offense. This crime is a misdemeanor, punishable by up to 9 months in jail, $10,000.00 in fines, or both.
- Battery by persons subject to certain injunctions. This offense focuses on more than a simple violation of the restraining order. In this crime, the defendant commits a battery against the petitioner. In this case, the battery is a Class I felony, punishable by up to 3.5 years in prison, $10,000.00 in fines, or both.
If you’re summonsed for a new charge, you must appear in court. We certainly suggest you do that with an attorney.
Tips to avoid restraining order violations
Certainly being served with a petition for a restraining order is concerning. But being arrested for a violation of the order carries with it other issues. Facing the potential of a criminal conviction, which will remain with you the rest of your life, is a whole lot more serious. Here are a few tips to avoid violating the restraining order.
- Firstly, it’s crucial you delete the individual’s contact details from your phone. At Meyer Van Severen, S.C. we’ve encountered bail jumping charges based purely on the respondent accidentally calling the petitioner. Deleting all contact details from your phone protects you against that potential. Additionally, it makes it easier to avoid succumbing to the temptation to reach out the other person.
- Secondly, talk to your friends about the situation. Dealing with situations like this on your own is difficult. Having the support of friends and family makes dealing with this a little easier. Fighting a battle on your own is more difficult than having a team on your side.
- Thirdly, avoid the petitioner’s residence. And avoid places you both previously frequented. While you might have the desire to run into that person in public, nothing good will come of that encounter. It’s crucial you continue to avoid all places you might encounter him or her.
- Finally, delete the petitioner from social media. Your ability to continually monitor the petitioner’s social media encourages you to hold onto feelings from the past. Deleting his or her social media accounts allows you to move on from the situation a little easier.
Identifying restraining order misuse
Any criminal defense attorney will tell you the same thing: sometimes, even frequently, petitioners understand that restraining orders can be abused. It’s relatively easy to obtain an order. Once that order is in place, you’re not in control of the situation anymore. We have two tips to deal with this:
- Firstly, hire a criminal defense attorney to fight the restraining order on the front end. Fighting the facts of the case and challenging assertions that aren’t correct is the best way to avoid a restraining order. And a criminal defense attorney, specifically one acclimated to the contentious nature of the courts, will put you in the best position to fight false allegations.
- Secondly, follow the order. Section 813.12(4)(c)1 of the Wisconsin Statutes indicates that a restraining order doesn’t go away “if the petitioner allows or initiates contact with the respondent or by the admittance of the respondent into a dwelling that the injunction directs him or her to avoid.” What does this mean? Only the court can void the injunction. It does not matter what the petitioner tells you or asks you to do. If you’re found in violation of the order, you will be arrested. It isn’t a defense to argue that the petitioner told you the restraining order wasn’t in place. Importantly, if a restraining order is dropped, the court will certainly let you know.
Finally, contact a criminal defense attorney
As we’ve already made clear, the best way to fight a restraining order is with the assistance of a criminal defense lawyer. And secondly, people who are charged with restraining order violations should contact an attorney.
If you have questions about this, contact Meyer Van Severen, S.C. at (414) 270-0202.